U.S. v. FOX

The opinion of the court was delivered by: Zimmerman, United States Magistrate Judge.

ORDER DENYING MOTION FOR
JUDGMENT OF ACQUITTAL

Defendant was tried on charges of violating 36 C.F.R. § 1004.23
(a)(1), driving under the influence of alcohol, 36 C.F.R. § 1004.23
(c)(2), refusal to submit to a test, and 36 C.F.R. § 1004.21 (c),
speeding. At trial, United States Park Police Officer Smith testified that
she was stationed in her patrol car at the intersection of Lincoln Avenue
and Bowley Street in the Presidio*fn1, which is policed by the Park
Police, when she observed defendant's car proceeding south down Lincoln
at a high rate of speed. As the defendant's car approached her, Officer
Smith, using a radar gun, clocked defendant as traveling well in excess
of the posted speed limit. Officer Smith then sigualed to defendant to
pull over by activating her flashing lights, and began to follow
defendant. Instead of pulling over, defendant drove on for about two
hundred yards, left the Presidio and came to a stop on 25th Avenue just
past its intersection with El Camino Del Mar and about one block outside
the Presidio.

Officer Smith further testified that after she approached the car and
asked for defendant's driver's license, she observed signs of
intoxication and had defendant perform certain field sobriety tests.
Officer Smith then concluded that she had probable cause to believe that
defendant had been driving under the influence of alcohol, arrested her
and took her to the Presidio Police Station.

At the conclusion of the government's case, defendant moved under FRCrP
29 for a judgment of acquittal. In part, defendant argued that in view of
Officer Smith's testimony that the factual bases for probable cause to
believe defendant was driving under the influence of alcohol were all
developed outside the Presidio, Officer Smith lacked jurisdiction to
arrest her for that crime.*fn2 Defendant argued that all Officer Smith
could do once outside the Presidio was to call the San Francisco Police
Department.

The authority of United States Park Police is set forth in
16 U.S.C. § 1a-6(b) which provides in pertinent part as follows:

In addition to any other authority conferred by
law, the Secretary of the Interior is authorized to
designate, pursuant to standards prescribed in
regulations by the Secretary, certain officers or
employees of the Department of the Interior who shall
maintain law and order and protect persons and
property within areas of the National Park System. In
the performance of such duties, the officers or
employees, so designated, may —

(3) conduct investigations of offenses against the
United States committed in that system in the absence
of investigation thereof by any other Federal law
enforcement agency having investigative jurisdiction
over the offense committed or with the concurrence of
such other agency.

I conclude that Officer Smith was authorized to arrest the defendant
for drunk driving under § 1a-6(b)(1) in that she made an arrest
without a warrant for an offense against the United States*fn3 committed
in her presence by a person fleeing from the Presidio to avoid arrest. I
find that given her observations and the results of the field sobriety
tests administered to defendant, Officer Smith reasonably concluded that
there was probable cause to believe defendant had been driving while
under the influence of alcohol and that this offense had been committed
in the Presidio and witnessed by Officer Smith. I also conclude that when
defendant failed to stop in response to Officer Smith's flashing lights,
though she had the opportunity to do so, but instead traveled about 200
yards through the Presidio before coming to a stop about one block
outside the gate, she was fleeing to avoid arrest within the meaning of
§ 1a-6(b)(1). I do not read that section as requiring that the
defendant lead the police on a high speed chase to race them to the
park's border. I think the statute is satisfied in a case such as this, if
the Park Police attempt to stop a defendant in the Presidio and the
defendant continues to travel through the Presidio so she cannot be
arrested within its borders, especially where the defendant later
contends that the Park Police lacked jurisdiction to arrest her solely
because she managed to leave the Presidio before she stopped.

The other bases of authority urged by the government are problematic.
California Penal Code § 830.8(a)(2) purports to grant Officer Smith
arrest power outside federal property so long as she is enforcing federal
criminal law and has been certified under § 830.8(a)(4). Apart from
serious questions about the ability of a state to legislate federal
authority, there is no evidence in the record that Officer Smith was
properly certified. 16 U.S.C. § 1a-6(b)(3), which authorizes Officer
Smith to conduct investigations of offenses against the United States,
has been interpreted by the Ninth Circuit to permit investigations which
start on federal property to move off federal property. United States v.
Smith, 713 F.2d 491, 494 (9th Cir. 1983).*fn4 Whether Officer Smith was
conducting an investigation within the meaning of that statute when she
stopped defendant is a question I need not decide in view of my earlier
ruling.

Defendant has cited no authority for the proposition that Officer Smith
did not have jurisdiction to arrest her for drunk driving and the court
has been unable to find any. Nor does defendant's proposal have much to
commend it. It would provide incentive for persons stopped by Park Police
in the
Presidio to try to leave the Presidio in an effort to avoid arrest. This
in turn could endanger persons and property.*fn5 It could unduly
complicate law enforcement by requiring two sets of officers to be
involved in the investigation and prosecution of many Presidio crimes.
And it could lead to considerable mischief to law enforcement if a Park
Police Officer could not secure immediate cooperation from the San
Francisco Police Department. Finally, apart from her geographical
argument, defendant offers no explanation of how she has been prejudiced
by having been arrested by the Park Police as opposed to the San
Francisco Police. For all these reasons, defendant's motion for a
judgment of acquittal on the grounds that Officer Smith lacked authority
to arrest her for drunk driving is DENIED.

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